Copyright: it's a long fight to get it right

Copyright is an important part of our legal framework. For many artists, it helps them control and negotiate profits flowing from the use of their work, in all kinds of media.
Since the advent of digital technology, it has been hard to square the legal right to stop people copying text, pictures, video and audio with the technological realities. The global companies dependent on copyright revenues have also had a hard time learning that in the Internet era, customers are likely to decide the terms you play on, rather than the rights holders.

The result is that ORG has been fighting since 2005 for sensible copyright laws, and resisting overblown attempts by rights holders to control the flow of information on the Internet. The biggest such push in the UK has been the three strikes regime introduced in the Digital Economy Act 2010, a strategy so difficult to implement that it still hasn't fully taken shape.

Let's take the question of how the digital world and copyright come into conflict. Copyright is a right to stop people making copies, starting with books in the 1709 Copyright laws. However, copying is just what computers do, when they back up, move data across networks, when a file is read into memory, or you look at a website. EU Copyright has "exceptions" to allow "transient or incidental" copying. It's the only compulsory European copyright user right.

Still, it has taken arguably 20 years for the law to catch up with the advent of the MP3 revolution, as computer users started to copy their legally purchased music onto hard drives in compressed formats. It's long been a part of everyday life, but only yesterday did we get the final signal that UK copyright law would be updated to reflect our everyday use of legally purchased copyright works.

Part of the reason is that many "format shifting" exceptions come along with a "compensatory" levy: in much of the EU you pay, via an ipod tax, for the right to copy your music. The UK has rejected this idea, but they may have a fight on their hands. In any case, the push for compensation explains much of the delay.

The data mining exception, to allow researchers to check through electronic texts they have licensed, and the parody exception are also reactions to the new possibilities of use and creation that come with the digital age. Parodies are part of everyday Internet expression. While the exception may not end legal uncertainty, and may yet prove not to be wide enough, it is a huge step forward.

At this point, it's worth remembering that DVDs and other 'copy protected' works still won't be legally format shifted. You will, however, be able to ask the Secretary of State to help you obtain new personal copies!

Format shifting and parody were both supported by ORG in the 2006 Gowers Review, and again in the 2011 Hargreaves Review, which we are now finally seeing implemented. Back in Gowers, the report also recommended that copyright terms stay the same: which was ignored after rights holders pushed for an increase in for sound recording copyright from 50 to 90 years; we eventually got a 70 year term. Not very coincidentally this protects revenues from Beatles' sound recordings; unfortunately it also means a lot of 1960s music will likely remain out of print and inaccessible to the public.

Gowers did recommend greater online enforcement, including a possible three strikes arrangement, which became law as the Digital Economy Act 2010. This was the major part of Gowers that ORG disagreed with. However, in the DEA Lords debates, they noticed that questions like format shifting had still not been resolved, which led back to calls for the next review under David Cameron's administration, in 2010, known as the Hargreaves Review. It may even have been mentioned in the truncated three hour Commons debate before washup.

You might ask, why does it take repeated independent reviews to settle questions of copyright, when things like format shifting and parody are so obviously needed? The reason seems to be the extraordinary pressure that government is put under by copyright lobby groups, including the BPI and Motion Picture Association (MPA).

These groups push for term extension, enforcement measures, argue against exceptions or attempt to narrow them and insist compensatory levies are imposed. They have run a campaign claiming the Intellectual Property Office is anti-intellectual property, because it believes in greater exceptions. Most recently, a report by the IPPR noted to have been funded and advised upon by these groups concuded that:

the government should not proceed with the planned introduction of a series of new copyright exceptions at this time. The benefits of them are unproven, and their risks uncertain (Culture, media and sport select committee 2013). In the case of a private copying exception (to allow consumers to transfer content from CDs to digital storage) there is a clear risk that the government will pass laws to enable a form of consumer behaviour that is rapidly becoming technologically out of date.

The copyright lobby groups have international political power, and have been instrumental in creating measures such as TRIPS and push for measures like ACTA. In the USA the representatives of the same companies pushed for Internet censorship measures in SOPA and PIPA.

They are very powerful, politically influential and hard for governments to deal with rationally. This is why reviews are set up: a balanced view is easier to obtain, independent of long lobbying strategies. However, even after the reviews conclude, it is why implementation takes so long, as groups bargain, cajole, oppose and lobby.

Still, these exceptions represent a significant victory for copyright, even if copyright lobby groups don’t see it. Copyright comes into conflict with free speech and customer expectations, so to remain legitimate it needs significant user rights. When those rights are met, copyright can achieve greater legitimacy and acceptability, can claim to be fair and reasonable, and continue to claim widespread support. If the copyright lobby groups continue to complain about these very sensible and modest new user rights, remember that they are arguing against their better interests.

Open Rights Group exists to preserve and promote your rights in the digital age. We are funded by thousands of people like you. We are based in London, United Kingdom. Open Rights is a non-profit company limited by Guarantee, registered in England
and Wales no. 05581537.